Policy Analysis: Legal Aspects of Caste Census in India

Introduction

The census in India has voluminous demographic data owing to the country’s size and socio-economic variations. But in recent times, there have been rising demands to add caste-related questions in the survey. This has pressurized the government to conduct a caste-based census in 2022. Similar demands were raised in the 2011 census as well and the then government had conducted the Socio-Economic Caste Census (SECC). The supporters of the caste-based census believe that the census should reflect the prevalence of caste in Indian society. Correct enumeration of different castes will aid the authorities in reviewing policies that are sensitive to the country, such as reservation, which is based on caste. Reservation is an affirmative action of the government to secure a quota in public institutions for historically disadvantaged groups of society. On the contrary, the opponents of the cause believe that the caste divide has already hurt the country’s unity and that a caste-based census will further deteriorate it. They argue that this exercise is neither practical nor administratively feasible because the government lacks an official caste registry. It is the same reason why the SECC data was flawed and fruitless, and hence, never published.

However, both these stances are political and cannot be taken as a ground for any constitutional, statutory, or human rights aspects of the policy. A cogent legal analysis of the caste-census first requires a more fundamental and nuanced understanding of the policy. This will clarify its purpose, relevance, and importance along with its possible legal implications.

The significance of this policy can be realised by examining the conditions of Other Backward Classes (OBCs) in the country. OBC is an umbrella term that enlists a number of castes within it. All those castes are given the reservation protection as a whole. However, some castes have benefited from reservation more than others. Surveys like NFHS underline the prevalence of differentiation in the economic status of OBCs across India’s states. Similarly, a report published in 2019 in a leading daily highlighted the relative share of OBCs in the top 20% households by wealth and found significant divergences across states, suggesting that the economic status of OBCs is not uniform across the country. Thus, stress is being laid on the recognition of the disadvantaged groups among the OBCs and remedying them through policy revision. Once these groups are recognised, the reservation policy can be amended and equitable benefits can be given to the different castes in OBC. To aid this, the government had set up the Rohini Commission, which released that there are 2,633 Other Backward Castes in the Central List. The Commission proposed to divide them into four subcategories numbered 1, 2, 3 and 4 and split the 27% reservation given to OBCs into 2, 6, 9 and 10%, respectively. However, the recommendations of the committee have not been adopted yet.

Human Rights and Constitutional Perspective on the Issue

Keeping these views in mind, when ‘caste-based census’ is examined from a human rights perspective, the arguments of its proponents are strengthened. One of the key aspects of a strong Human Rights regime is to ensure the rights and liberty of the national, ethnic and religious groups. The UN Special Rapporteur on minority issues, 2016 presented a comprehensive view on caste discrimination and reported that ‘caste’ discrimination has affected the lives of over 250 million people depriving them of their social, economic, political, and cultural rights. Similarly, a report by Human Rights Watch emphasizes the same problem quoting, “A lack of formal education or training, as well as discrimination that effectively bars them(lower castes) from many forms of employment, and the non-enforcement of protective legislation, perpetuates caste-based employment and keeps its hereditary nature alive.”

Conducting caste census and using the data to formulate friendly policies for the lowermost strata of the society will not only guarantee the rights enshrined in Article 14 and Article 21 of the Indian Constitution but shall also be in line with the global standards set in international conventions like the UDHR, Article 1 and Article 7 of which seek ‘to promote social progress and better standards of life in larger freedom’ along with protecting human dignity and ensuring equality through other conventions.

A Statutory Perspective and the Issue of Misinformation

Contrary to the foregoing perspectives, if the matter is analysed from statutory aspects of the municipal laws of the country, the issue becomes far more complex. The matter comes down to misinformation and wrong data presentation through manipulation. Research shows that there have been instances where enumerators have filled the data on the questionnaire themselves because of lack of training and arduous nature of work. Recently, this very problem cropped up before the High Court of Jharkhand in the case of Rajendra Soren v State of Jharkhand and Others where the enumerator misconducted during the census, which led to inadequate data of the district. Even the respondents are prone to providing wrong information about their age, occupation, income, etc. So, this begs the question- If there is such misinformation in the census, how reliable would be the data for something as politically sensitive as reservation? Also, logically speaking, people and enumerators of a certain political opinion would be more prone to provide wrong data in order to take the intended benefits of several government schemes.

Although Section 11(d) of the Census Act, 1948 talks about penalising the person who intentionally gives a false answer to the census officer, it only imposes only a minimal fine for this act. There is no exemplary deterrence to back up the problem that a wrong information can cause. Even though other laws like Section 177 of IPC, which penalises furnishing false information to public servants, are not explicitly barred from prosecuting offences related to census, Section 13 of the Census Act stipulates they cannot be implemented in the particular case. Section 13 of the Census Act reads as, “Nothing in this Act shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence under this Act.” The Supreme Court had clarified this in the case of Sharat Babu Digumarti v. Govt. of NCT of Delhi that whenever two statutes mention the same offence, special laws shall prevail over the general laws. Thus, the Census Act would prevail over general laws such as the Indian Penal Code if it is chosen to be applied. Even though the offence has a higher deterrence under Indian Penal Code, it cannot be applied because it will dilute the legislative intent of explicitly mentioning the offence in the Census Act. This is done to prevent double jeopardy and respect the legislative intention of separating the two statutory provisions.

Another problem that aggravates the situation is India’s official statistics, which are not free of errors. There are several instances where this has been revealed. In July 2011, the governor of the Reserve Bank of India highlighted the quality of statistics collected by government agencies, to which, the Commerce Secretary later agreed. India’s export figures for the April–October period were inflated by US$9.4 billion due to a misclassification of certain items and data-entry errors. The accuracy of important government indices like the Index of Industrial Production and Wholesale Price Index has also been under question.

Apart from these government reports, the data of Census has also been under question. For instance, the census data from Nagaland. According to census data, in the decades 1981–91 and 1991–2001, the state’s population grew by 56.09 and 64.53 per cent respectively. But the 2011 census reveals that between 2001 and 2011 Nagaland’s population shrunk by 0.47 per cent. This means that Nagaland’s population has declined without any devastating biological, political, or anthropological cause. Such information is not only inconsistent with previous data, but also questionable.

How is Misinformation a problem?

The goal of our constitution is to maintain the dignity of people by ensuring equality and equal protection of law. The objective of the caste census is quite in line with it, i.e., to reveal underlying disparities among the distribution of reservation in the population and aid the revision of the policy. This will fulfil the constitutional goal of ‘equal protection of law’. However, the tendency of people to give wrong information and the history/precedent of data manipulation by the government can prove fatal for this policy. Wrong information and wrong data would lead to wrong policy, which would be a gross ‘constitutional tort’ from the end of the government. Moreover, any law arising out of such data would be against the ‘due process’ clause, introduced by the Supreme Court in the Maneka Gandhi’s case, as it would be unjust and arbitrary.

However, if the issue is not solved, it will be a non-fulfillment of the constitutional promise of conscious promotion of fundamental and human rights of the people. Thus, on one end, there is a tendency of wrong data or manipulated data, that would result in wrong policy, which would be a gross constitutional tort. On the other end, if this exercise is not conducted, the state will stray from its duty and fundamental rights and human rights of the people would be violated.

Conclusion and the Way Ahead

To sum up my arguments, I would first like to highlight the major aspects of my aforesaid assertions, then proceed with some possible steps to mitigate the effect of the said problems. My first major emphasis was on the importance of caste-census and its socio-legal implications. The second highlight was examining how the caste-census well-served the goals of the Constitution and principles of Human Rights. Then, I focused on the statutory aspects of the matter and analysed how the problem of manipulated could not be dealt well by this machinery. And finally, I rationalised how the caste census can not only prove to be a gross ‘constitutional tort’ but also move against the principles of ‘due process’ clause.

Now, let us come to solution aspects of the issue. What could possibly mitigate the problems caused in the process? In my opinion, the overall policy needs to be spread across multiple time frames- short term and long term.

The short-term policy should be two-fold: increasing accuracy and decreasing misinformation. To decrease misinformation, statutes such as the Census Act can be amended for higher deterrence This higher punishment and penalty coupled with good training and awareness, will instill lawfulness in the process, and ensure accuracy, both from the end of enumerators and survey-takers. As for the long-term policy, the approach should be to build robusts digital and legal infrastructure that shall ensure transparency in the process. The digitalisation aspects includes the introduction of AI powered tools that will tally the information given by survey takers with digitalised registries of information like income and caste. This will improve the efficiency and accuracy of data. The legal aspects include introduction of strong data-protection laws to secure personal data of the people, and development of a redressal forum for both enumerators and survey-takers.

Policies like reservation and caste census have the tendency to consolidate the caste divide which is against the Constitutional principles. Thus, this multi-layered approach may prove consequential for the introduction and implementation of the policy and not only ensure good governance and just policies, but also protection of fundamental and human rights of the people.

(This article is written by Amartya Sahastranshu Singh. Amartya is a third-year law student at the National University of Study and Research in Law, Ranchi)

CITE AS: Amartya Sahastranshu Singh, ‘Policy Analysis: Legal Aspects of Caste Census in India’ (The Contemporary Law Forum, 31 July 2022) <https://tclf.in/2022/07/31/policy-analysis-legal-aspects-of-caste-census-in-india> date of access.

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